s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - application made outside of 21-day time limit - no exceptional circumstances - application dismissed.

• [1] On the 29 November 2025, Ms Jessica Thomas (the Applicant) lodged an application (the Application) pursuant to s 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 20 October 2025 by her employer (the Respondent) contravened her workplace rights.

• [2] Section 366(1) of the Act states that a general protections dismissal dispute application must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 366(2) of the Act. The period of 21 days ended at midnight on 10 November 2025. The Application was therefore filed 19 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 394(3) of the FW Act.

• [3] Following allocation of the matter to my Chambers on 19 December 2025, I reviewed the Form F8 filed by the Applicant and decided it was appropriate to determine the matter on the papers.

• [4] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under section 365, it (the application) must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to section 366 of the Act.

• [5] The Act allows the Commission to extend the period within which a general protections dismissal dispute application can be made, only if it is satisfied that there are 'exceptional circumstances.' Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]

• [6] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [7] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) any action taken by the person to dispute the dismissal;

(c) prejudice to the employer (including prejudice caused by the delay);

(e) fairness as between the person and other persons in a like position.

• [8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

• [9] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 10 November 2025. The delay is the period commencing immediately after that time until 29 November 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

• [10] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[5].

• [11] The Applicant states that she was assured at her termination meeting on 20 October 2025 that she would be paid in full, including wages, notice period paid in lieu and accrued leave in the next pay cycle on 15 November 2025. She says she relied on this assurance in accepting the termination of her employment. When no payment was made on that date, she contacted the Payroll Manager and HR representative to seek clarification and was advised she would not be paid as previously assured. Shortly after this advice, she claims her communication with the Respondent was blocked.

• [12] The Applicant's explanation for the filing delay relates to the termination payments she anticipated she would receive. Those payments do not however bare upon the claim she has now made, that being she was dismissed for a prohibited reason. The termination payments are an entirely separate matter that in no way fettered the rights of the Applicant to make a general protections application. While I accept the Applicant is aggrieved at having not received the termination payments, she says she was assured she would receive; she was not prevented from making a general protections application at an earlier time than she did. The reason advanced by the Applicant does not in my view constitute a reasonable explanation for the delay in filing her application. Even if it is accepted that the Applicant's filing delay is explained up until 15 November 2025, it took the Applicant a further two weeks to file her application. A satisfactory explanation for that further delay has not been provided.

• [13] The Applicant has failed to provide a credible explanation for any part of the delay in filing the Application. This weighs against a finding of exceptional circumstances.

• [14] The Applicant took no action to contest her dismissal after it took effect on 20 October 2025, other than lodging the Application. This weighs against a finding of exceptional circumstances.

• [15] The Application was filed 19 days outside of the 21-day period. I find in the circumstances, that because of the length of the filing delay there would be some prejudice to the Respondent if an extension of time were to be granted. This weighs against a finding of exceptional circumstances.

• [16] The Applicant claims that her supervisor raised concerns regarding her performance approximately one week before her dismissal. The Applicant acknowledges that the concerns related to a two-week period when her performance had declined due to her withdrawal from SSRI medication. She states she explained her medical circumstances, apologised and assured her manager that she was feeling better having resumed taking her medication and was ready to perform at her best again. She further states that having addressed the medication issue, she worked hard and performed well during the following week when her manager was away but was unexpectedly terminated on his return. The Applicant attributes her dismissal to her physical or mental disability (s 351 of the Act). I note that the Applicant commenced employment with the Respondent on 1 September 2025 and was dismissed during her 6-month probationary period

• [17] In applications of this kind, being interlocutory in nature, it is inappropriate to express a concluded view about the merits of an application. Nor is it possible to thoroughly test the disputed claims. In any event, in applications under s.365, the Commission's function at this stage of an application is to convene a conference, not determine the merits. It is sufficient for present purposes to note that on the material available to me, the Applicant has an arguable case. I regard the merits of the case to be a neutral factor in the circumstances.

Fairness as between the person and other persons in a similar position

• [18] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

• [19] The applicant didn't bring to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [20] Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [21] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

Printed by authority of the Commonwealth Government Printer